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Bava Basra, 133

1) HALACHAH: COLLECTING "MEZONOS" FROM PROPERTY THAT WAS GIVEN AWAY

QUESTION: The Gemara states that when Shechiv Mera distributes his estate to several people, those people who are fit to inherit him receive their share of the estate as an inheritance, while those people who are not fit to inherit him receive their share as a gift. The Gemara inquires what is the practical difference between receiving the property as an inheritance and receiving it as a gift. The Gemara suggests that one difference is when the widow of the benefactor comes to collect her Mezonos from the estate. The Halachah is that a widow may collect her Mezonos only from portions of the estate which were inherited by the heirs, for on those portions her Shi'abud still exists. She may *not* collect her Mezonos from property that was sold or given away. Thus, the widow may not collect her Mezonos from the property that the recipients -- who are *not* fit to inherit the benefactor -- received as a gift, while she *may* collect from the property that the recipients -- who *are* fit to inherit the benefactor -- received as an inheritance.

The Gemara refutes this difference based on the logic that if a widow may collect her Mezonos from the property inherited by heirs even though that property now belongs to them mid'Oraisa (since Yerushah is mid'Oraisa), then certainly she should be able to collect her Mezonos from the property received as a gift by others, since this gift is only mid'Rabanan. The gift given by her husband was a Matnas Shechiv Mera, a gift given by a dying man through making a verbal statement (and not through a written document). Such a gift is binding only mid'Rabanan; the Chachamim instituted that a Shechiv Mera may effect a Kinyan and transfer his property by simply requesting verbally that the transfer take place (normally, such a request is not binding). Since the gift given by the Shechiv Mera is binding only because of a rabbinic enactment, certainly the widow should be able to collect her Mezonos from that property!

May a widow collect her Mezonos from the recipient of a that was given by her husband when he was healthy?

ANSWER: The Mishnah in Gitin (48b) states that a widow is entitled to receive Mezonos from her deceased husband's estate. However, she may collect her Mezonos only from property inherited by the heirs, but not property which was sold to others (Nechasim Meshu'abadim). TOSFOS in Kesuvos (49b, DH Hu) is in doubt whether the widow is restricted only from collecting property that was *sold*, but she *may* collect property that her husband had *given* away as a gift, or whether she also may not collect from property given away as a gift. This doubt is based on the Gemara in Gitin (50b) which states that some of the enactments that the Rabanan made in order to protect a buyer (such as the enactment that a widow may not collect her Mezonos from property that a buyer purchased from her husband) do not apply to one who received a gift (since he has nothing to lose).

One of the proofs that Tosfos writes that a widow may *not* collect her Mezonos from property that was given as a gift (even though the recipient of the gift has nothing to lose) is from our Gemara. he has nothing to a recipient of a gift. Our Gemara states that a widow may collect her Mezonos from the recipient of the gift because the gift he received from the Shechiv Mera was only a Kinyan mid'Rabanan. This implies that a widow may *not* collect her Mezonos from the recipient of a normal gift (a gift given by a "Bari," a healthy person) which is a Kinyan mid'Oraisa. This is also the Halachah as recorded by the SHULCHAN ARUCH (EH 93:20). (Y. Marcus)

OPINIONS: The Gemara (132a-133a) discusses whether a woman foregoes her rights to collect her Kesuvah from property owned by her husband when he gives away all of his property as a gift to others and to his wife. The Gemara says that in the case of a Shechiv Mera who gives away part of his property to others and part to his wife, the wife's lack of protest shows that she foregoes the Shi'abud on his property (see Insights to 132b). Rava (on 132b) asks whether the same applies in the case of a "Bari," a healthy person, who gives away all of his property to others, including to his wife. In such a case, perhaps the woman does *not* intend to forego her right to collect her Kesuvah, because she expects that he will acquire new property from which she can collect, and the only reason why she was silent when he gave away all of his property is because she did not want to upset him. The Gemara leaves this question unresolved.

In such a case, what is the Halachah? It seems that the principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah" should apply. However, it is not clear who is considered the "Motzi" and who is considered the one who is in possession of the property ("Muchzak"). Perhaps the woman is considered to be in possession of the property, since she has a Shi'abud on it. On the other hand, perhaps the husband is considered to be the "Muchzak," and the woman is the "Motzi," since he (or the recipients of the gift that he gave) is in actual possession of the property.

(a) The RASHBAM (end of DH Amar Lei Rav Yeimar) comments that since the Gemara does not resolve its question concerning whether or not a widow foregoes her Shi'abud to her husband's property when he gives it away while he is a "Bari," in practice she may *not* collect her Kesuvah because she is considered to be the "Motzi."

(b) The KOVETZ SHI'URIM here refers to the TESHUVOS HA'RASHBA (6:5) who disagrees with the Rashbam. The Rashba asserts that since the husband's property was certainly Meshu'abad to the woman before the doubt about her Mechilah arose, the woman is now considered to be the one who is "Muchzak." The question is whether or not she relinquished her Shi'abud, and since that question is unresolved, we assume that she still has the Shi'abud.

The Rashba understands that a Shi'abud on property is considered to be like a partial Kinyan. Hence, if a doubt arises whether she lost that Shi'abud, she is considered to be "Muchzak" and the other party must bring proof to prevent her from collecting from that property.

The Rashbam, in contrast, views a Shi'abud to be merely a commitment granted to the woman to allow her to collect her Kesuvah from that property; it does not involve any actual Kinyan or partial Kinyan. Accordingly, the husband (and his heirs) are considered to be "Muchzak" and the woman must bring proof (that she did not forego the Shi'abud) in order to collect. (Y. Marcus)

133b